Opinion
C/A No.: 1:18-3249-RBH-SVH
12-26-2018
Francillon Debreus, Petitioner, v. Warden D.J. Horman, Respondent.
REPORT AND RECOMMENDATION
Petitioner, proceeding pro se, brought this action requesting a writ of habeas corpus pursuant to 28 U.S.C. § 2241. All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local Rule 73.02(B)(2)(c) (D.S.C.). On December 5, 2018, the undersigned issued an order directing Petitioner to either pay the $5 filing fee or submit an application to proceed in forma pauperis. On December 26, 2018, the envelope containing the court's order was returned in the mail. [ECF No. 7]. The envelope stated "Return to Sender, Refused, Unable to Forward." Id. at 7-1.
Based on the foregoing, it is recommended that this action be dismissed in accordance with Fed. R. Civ. P. 41(b) for failure to prosecute. The Clerk is directed to send this Report and Recommendation to Petitioner at his last known address. If Petitioner notifies the court within the time set for filing objections to this Report and Recommendation that he wishes to continue with this case and intends to accept mail, the Clerk is directed to vacate this Report and Recommendation and return this file to the undersigned for further handling. If, however, no objections are filed, the Clerk shall forward this Report and Recommendation to the district judge for disposition.
The undersigned notes the petition would have been subject to dismissal or transfer, as Petitioner is not housed in this district. Rumsfeld v. Padilla, 542 U.S. 426, 434-35 (2004) (citation omitted) (holding the proper respondent is generally the "person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge.").
IT IS SO RECOMMENDED. December 26, 2018
Columbia, South Carolina
/s/
Shiva V. Hodges
United States Magistrate Judge
The parties are directed to note the important information in the attached
"Notice of Right to File Objections to Report and Recommendation."
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).